Erica M. v. Super. Ct.

Filed 7/13/06 Erica M. v. Super. Ct. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. John G. O'Rourke, Judge.

William Walter Fjellbo, for Petitioner.

No appearance for Respondent.

Peter D. Moock, County Counsel, and Laura J. Bakker, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 38) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing.^[1] We will grant the petition.

STATEMENT OF THE CASE AND FACTS

In early March 2005, a social worker with the Kings County Human Services Agency (agency) responded to a hospital referral that 19-year-old petitioner, pregnant and homeless, tested positive for methamphetamine. She admitted that her friends were known drug users and that she had been using drugs for a year and a half. Because of petitioner's drug use and unsafe lifestyle, the agency took her three-year-old daughter A. and 22-month-old son C., the subjects of this writ petition, into protective custody and filed a dependency petition on their behalf.

The juvenile court sustained the petition and ordered a plan of reunification, the chief objective of which was for petitioner to attain and maintain sobriety. To that end, she was specifically required to contact her caseworker every Monday, Wednesday, and Friday to determine if she had to drug test, to participate in outpatient drug treatment and follow any recommendations and, as part of a 12-Step program, to attend three Narcotics Anonymous (NA) and/or Alcoholics Anonymous (AA) meetings each week. Petitioner was also required, as part of her case plan, not to live with anyone with a history of substance abuse unless the person was attending or had completed a substance abuse treatment program approved by the social worker and to notify the social worker within 48 hours of any change in address. The court also ordered weekly supervised visitation with the children who were placed with their paternal aunt.

In March 2005, petitioner entered a residential drug treatment program, which she completed four months later in July. Upon her release, petitioner moved in with her mother and began the two-month aftercare program, part of which required her to attend three NA/AA meetings each week.

In its six-month status review, the agency reported that petitioner was in compliance with her reunification plan and recommended the court continue her services for another six months. The agency reported that petitioner consistently tested negative for drugs, attended NA/AA meetings from April through June 2005 and was on step four of her 12-step program. She also enjoyed regular positive visitation with her children.

On September 21, 2005, the court conducted the six-month review hearing. The court found that petitioner made significant progress in her case plan and ordered services to continue for another six months. The court set the 12-month review hearing for March 15, 2006.

On October 1, 2005, a new social worker was assigned to petitioner's case. In addition, over the next few months, petitioner's life circumstances changed in ways that negatively impacted her case plan compliance. She moved out of her mother's home in December 2005 and established a residence with her boyfriend without notifying the social worker of her changed address until early January 2006. Petitioner and her boyfriend moved again in April 2006, again without giving proper notice to the social worker. Petitioner also obtained full time employment as a waitress and visited the children weekly in her home through an informal arrangement with the children's paternal aunt. However, she did not contact the caseworker to drug test, had not provided proof she was attending NA/AA meetings and had not taken steps to have her boyfriend cleared by the agency. As a result, in January 2006, the caseworker notified the paternal aunt that the children could no longer visit with petitioner in her home. Thereafter, petitioner contacted the aunt to arrange visitation in the aunt's home.

In the 12-month status review, the caseworker reported that she spoke to petitioner in early October 2005 about her failure to call in and drug test. At the time, petitioner blamed her busy work schedule but did not call in to drug test until December 5, 2005. She drug tested on that day and the results were negative. Petitioner continued not to call in necessitating another discussion with the caseworker on February 16, 2006. Petitioner explained that her purse was stolen on December 8, 2005, and that without a picture identification (ID), she could not drug test. The caseworker advised her that the agency could make her an ID card acceptable for drug testing. Such an ID card was made for petitioner on February 2006. She voluntarily drug tested that same day and the results were negative. On March 15, 2006, petitioner began calling in regularly to drug test. On that same day, she voluntarily submitted to a hair follicle test, which was negative.

In summarizing petitioner's noncompliance with the drug-testing component of her case plan, the caseworker reported that petitioner called in on 5 out of the potential 56 testing days. She was required to drug test on 3 of those days and the test results were negative.

The caseworker also reported that petitioner had not provided any proof she attended NA/AA meetings. Petitioner claimed that her attendance sheets were in her stolen purse. The caseworker also reported that petitioner did not visit the children from December 24, 2005, through January 11, 2006. She had a supervised visit on February 15, 2006, and on February 22, 2006. The paternal aunt was beginning to complain that petitioner did not give her enough notice.

Based on her experience with petitioner, the caseworker concluded that petitioner had no intention of complying with her case plan. Consequently, the agency, in its 12-month status review, recommended the court terminate petitioner's reunification services and set a section 366.26 hearing.

Petitioner challenged the agency's recommendations and she and the caseworker testified at the contested 12-month status review hearing on April 14, 2006. Petitioner explained that her initial failure to call in to drug test was a misunderstanding stemming from the arrangement she had with the prior caseworker who, recognizing that petitioner had no telephone service, contacted petitioner when she wanted her to drug test. However, petitioner testified that she never tested positive for drugs during the 12 months of reunification and that the negative results of the hair follicle test meant that she had not used drugs for the previous three to four months. During her testimony, petitioner produced a receipt from the police department proving that her purse was stolen in early December 2005. She also produced attendance sheets showing that she attended NA/AA meetings from March 24 through April 13, 2006. However, she admitted that she did not regularly attend meetings.

Petitioner also testified that she never missed visitation with her children but that their paternal aunt restricted her ability to visit them after visits were required to occur in the aunt's home. Consequently, instead of visiting the children weekly, petitioner was only able to visit them every two to three weeks.

The caseworker testified that petitioner was in compliance with those aspects of her case plan that required her to provide a current address and to complete substance abuse treatment. She also testified that petitioner's boyfriend completed a background check which indicated he was involved in an aftercare program. She confirmed there was no direct evidence that petitioner had relapsed into drug use and did not dispute the significance of the negative hair follicle test. She also testified that petitioner regularly visited the children until around December 24, 2005, and acknowledged that petitioner's changing work schedule necessitated changes in the visitation schedule. She was also aware of petitioner's difficulty arranging visitation and offered to arrange visitation for petitioner on April 12, 2006, at the agency. Petitioner was receptive and the visit occurred on April 13, 2006.

After argument, the court commented favorably on the fact that petitioner did not test positive for drugs. However, the court observed that negative drug tests alone are not a sufficient indicator that petitioner would remain drug-free and that, by neglecting the 12-step component of her case plan, petitioner was depriving herself of the necessary support to maintain her sobriety. The court also commented on petitioner's lack of consistent and regular contact with the children and on the lack of evidence that her work schedule would not allow more frequent contact.

At the conclusion of the hearing, the court found that petitioner failed to make substantive progress in her case plan and that it would be detrimental to return the children to her custody. The court further found that petitioner failed to regularly visit the children and that she had not demonstrated the capacity and ability to complete the objectives of her treatment plan. Consequently, the court terminated petitioner's reunification services and set a section 366.26 hearing for August 11, 2006. This petition ensued.

DISCUSSION

Petitioner argues she made substantial progress in alleviating the need for juvenile court intervention. Therefore, the juvenile court should have either returned the children to her custody at the 12-month review hearing or continued services for another six months. We review the juvenile court's findings and orders for substantial evidence, resolving all conflicts in favor of the court and indulging in all legitimate inferences to uphold the court's rulings. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) On review of the record as summarized above, we conclude substantial evidence supports the juvenile court's order continuing the children in out-of-home custody but not its order terminating petitioner's reunification services.

The juvenile court can not return a child to parental custody as long as the parent poses a risk of detriment. The failure of the parent to participate regularly and make substantive progress in court-ordered treatment programs constitutes prima facie evidence of detriment. (§ 366.21, subd. (f).)

In this case, petitioner conceded that she did not regularly attend NA/AA meetings. She also jeopardized visitation with her children by moving in with her boyfriend before he was approved by the agency and by not promptly acting to obtain the agency's approval. Consequently, we find no error in the court's finding that petitioner failed to regularly participate in her case plan and that her failure to participate regularly created a risk of detriment to her children if returned to her care.

That said, however, we conclude the juvenile court erred in terminating reunification services. Where, as here, reasonable services were provided and the juvenile court orders a child's continued removal at the 12-month review hearing, the court must either terminate services and proceed to a section 366.26 hearing or continue services to the 18-month review hearing. (§ 366.21, subd. (g).) However, the court can only continue services if it finds a substantial probability that the child will be returned to parental custody within that extended period of time. (§ 366.21, subd. (g)(1).) A substantial probability of return exists when the parent regularly visits the child, makes significant progress in resolving the problem requiring removal of the child, and demonstrates the capacity and ability to complete the objectives of the case plan and provide for the child's safety, protection, and well-being. (Ibid.)

In this case, petitioner's children were taken from her because she was homeless and using drugs. After 12 months of services, she was employed, had a home, and was drug-free. Moreover, we infer from the record that petitioner maintained her sobriety from the inception of services. We do so because when petitioner tested, she consistently tested negative. In addition, the negative hair follicle test rebuts any presumption she was using drugs when she failed to drug test from approximately December 2005 through March 2006. Based on this evidence, we conclude petitioner resolved her drug problem by attaining and maintaining sobriety.

Further, petitioner demonstrated the ability to complete the objectives of her case plan. By the 12-month review hearing, she was regularly calling in to drug test, she was attending meetings, and her boyfriend had completed his background check.

Finally, we conclude petitioner visited her children as regularly as she could under the circumstances. Given petitioner's demanding and changing work schedule and the informal and on-demand nature of visitation, it should not be surprising that petitioner would have difficulty maintaining a regular visitation schedule without the direct assistance of the caseworker.

In light of the foregoing, we conclude a substantial probability existed that six more months of services would have resulted in the children's return to petitioner's custody. Having so concluded, we find the juvenile court erred in terminating petitioner's reunification services and setting the section 366.26 hearing.

DISPOSITION

Let an extraordinary writ issue directing respondent court to vacate its order of April 14, 2006, terminating reunification services and setting the section 366.26 hearing. Respondent court is further directed to conduct a hearing and enter a new order reinstating reunification services for an additional six months. This opinion is final forthwith as to this court.

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^*Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.